FMLA now covers care by same-sex parents

Since 1993, employees have been able to take job-protected FMLA leave to care for a “son or daughter” with a serious health condition or for the birth (or adoption) of a “son or daughter.”

Now the U.S. Department of Labor (DOL) has issued a broad interpretation of that definition, clarifying that any employee who assumes the role of caring for a child will receive parental rights under the FMLA, regardless of the biological relationship.

For example, an employee who cares for a domestic partner’s child—or whose partner gives birth or adopts a child—is now eligible to take FMLA leave to care for the child.

“This action is a victory for many nontraditional families, including families in the lesbian-gay-bisexual-transgender community,” said a DOL statement.

The interpretation letter makes clear that “employees who have no biological or legal relationship with a child may nonetheless stand in loco parentis to the child and be entitled to FMLA leave.”

The new rule applies regardless of sexual orientation or conventional family ties. That means it also covers FMLA leave for extended family members. For example, an uncle who is caring for his sick niece while the child’s single parent is called into military duty is eligible.

“No one who steps in to parent a child when that child’s biological parents are absent or incapacitated should be denied leave by an employer because he or she is not the legal guardian,” said Secretary of Labor Hilda L. Solis.

What if you question the legitimacy of an employee’s parental role in an FMLA case? The DOL says employers “may require the employee to provide reasonable documentation or statement of the family relationship. A simple statement asserting that the requisite family relationship exists is all that is needed in situations such as in loco parentis where there is no legal or biological relationship.”

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